June 18, 1999
Co-Chair, ACCSH Multi-Employer Workgroup
OSHA, US DOL
101 Constitution Avenue, NW
Washington, DC 20150
Re: Comments from National Safety Council Construction Division on Multi-Employer Worksite policy draft date June 1999
Dear Co-chairman Devora:
Please share the following comments with your Co-Chair Evans and with your workgroup. The comments were generated by response to a broadcast fax sent to 200 construction industry members by the National Safety Council Construction Division. Responses include everything received up to my departure for Washington on June 7th. Several comments are set out next to the paragraphs affected. Additional comments are distilled and listed at the end of the draft text. Any additional responses will be forwarded to you as they arrive.
C.6. Multi-Employer Worksite: A worksite at which two or more entities are performing tasks that will contribute to the completion of a common project. The entities may or may not be related contractually. The contractual relationship may or not be in wiring. On multi-employer worksites, both in construction and industry, more than one employer may be citable for the same condition. The following employers are potentially citable.
analysis: in construction some contractual responsibilities such as defining schedules, defining sequence of work or assuring that contract specifications must be made with consideration to the safety of workers. These decisions may affects the employer's own employees or those of other employers. Where the combination of contractual responsibilities results in an employer directing the actions of theirs in matter related to safety, the employer is considered to be a controlling employer or manager. Where this combination of rights does not exist, then citations will not be issued other than for the exposure of employees.Elbe Watkins, Fru Con: voices concert that the effect of this paragraph may be a disincentive to Primes, General Contractors, Construction Managers to provide strong safety oversight.
A construction manager who provides project oversight, but who does not hold the contracts for construction work.....Analysis: The construction manager did not have any contractual authority over the exposing employer and did not have the power to order corrective action. The reasonable care standard was met to inspect and provide recommendations to the appropriate authority. No citation would be given.
National Utility Contractors Association members (per George Kennedy)
"Believe every contractor (employer) at a jobsite should be responsible for the safety of his/her employees and compliance with OSHA standards. Employers who expose workers to hazards should be cited; employers who created hazards that expose their employees or other workers to hazards should be cited; and employees who have been assigned the responsibility for correcting hazards and do not should be cited."
National Utility Contractors Association members (per George Kennedy)
"Oppose the concept of citing the "controlling" contractor (CC) for subcontractor violations of OSHA standards. NUCA members believe that sections C.6.d. and e. are overboard and unfairly extend liability beyond any anticipated contractual obligations.
Fletcher Pacific (per Tracy Lawson) has concerns that this draft
begins the slippery slope to far greater and cumbersome regulations in multi-employer scenarios. The worry is that guidelines will someday become increasingly used by CSHO's to excess. Express suggestions include using terms "due diligence instead of reasonable care" and using "in a timely manner instead of immediately".
Southern Illinois Builders Association (AGC of America) (per James R. Andrews, CSP - Safety Consultant on OSH to SIBA) is against the whole discussion and sees this effort as serving the will of lawyers, judges and other bureaucrats to erode our constitutional system.
"The fact is that lawyers, judges and other bureaucrats value far more highly the power and influence which they have managed to acquire by other means - by enlisting the aid of other well intentioned groups who naively succumb to the please of 'reasonableness' and support the bastardly efforts to 'make law'. There can be little doubt that the Advisory Committee on Construction Safety and Health is perhaps inadvertently aiding in such efforts by participation in the Multi-Employer Workgroup deliberations."
"Tell them (ACCSH) to seek the aid of their elected lawmakers in Congress!!"
Southern Illinois Builders Association (AGC of America)(per Tim Garvey - Director of SICAP Programs and Garland Whitworth - Director of Safety and Education
"... we have doubts concerning the equity and function of C.6.E. of your draft. The rest of the draft proposal seems logically compiled and the checklist for examining reasonable care could prove to be helpful.
However, we feel compelled to bring your attention an irrefutable fact: OSHA's multi-employer citation policy always has been, and continues to stand as a contradiction to Public Law 91-596, the Williams-Steiger Occupational Safety and Health Act (aka OSH act)...[which] mandates that the employer-employee relationship serve as the strictly limited basis for occupational safety and health responsibilities... We firmly believe that your sincere efforts to make this policy workable would be better served by urging OSHA to recognize the intent of the law that originally created the agency.
AON (per Dave Langton, Senior VP, submitted directly to Mr. Devora) remove the concept of Controlling Employer from draft. It is very difficult to determine; OSH Act is premised on employer/employee relationship, which is missing in Controlling Employer/Manager Scenario. "Reasonable Care Standard" should be revised. It is impossible for CSHOs to apply this term equally."
T.A. Loving Company (per Linwood Smith, VP) "Reasonable Care Standard is an excellent attempt to clarify conclusion. Please add another example explaining what areas general contractors and construction managers are responsible for inspecting. Please continue to minimize "controlling," which is ambiguous at best."
Safety Management Systems (per J. Robert Harrell) suggests that the ACCSH conform its multi-employer standard to that of ANSI
Francine Howell NSC Construction Division Manager suggests that the checklist for examining reasonable care include written site-specific safety plan as part of the contractual relationships.
Morley Brickman & Associates, Ltd. (per Morley Brickman) suggest we need to address recommendations regarding the controlling employer.
Barton Malow (per John Gleichman Director of Safety and Loss Control and Thomas Porter - VP and General Counsel) see attached fax/letter dated June 7,1999 from Barton Malow to Michael Buchet.
ZCON, Inc. (per Ingo Zeise) see attached fax dated June 3,1999 from ZCON Inc. to Michael Buchet.
Michael MX Buchet
National Safety Council Construction Division
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